28 January 2021

Biden Administration Revisits School Bathroom Debate

The Biden administration has hit the ground running.  As has been widely reported, President Biden signed dozens of executive orders in his first week in office.  Amid the flurry, you may have missed one signed on his first day, titled “Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation,” which will be important for employers and schools in the future.  Indeed, with respect to schools in particular, the EO provides, “Children should be able to learn without worrying about whether they will be denied access to the restroom, the locker room, or school sports.”  The Biden administration’s message is clear: transgender students again have allies in the Executive Branch who will push for their right to use the bathroom of their choosing and participate in sports consistent with their gender identity.

Under the EO, federal agencies must review existing regulations and guidance relative to Title VII or other laws or regulations that prohibit sex discrimination and, within 100 days, develop a plan to advance the policy articulated within the EO.  It will come as no surprise that President Biden’s policy will be an obvious departure from that of President Trump, which favored local decision‑making on the issue of transgender bathroom use and sports participation.  Schools can expect an emphasis on a student’s decision of which bathroom or locker room to use, as well as the ability to participate on a sports team that is aligned with the student’s gender identity.  And, schools can also expect pushback from parents and others who are opposed to the Biden administration’s policies for various reasons – religious beliefs, the potential disadvantages to biological females where biological males compete against them, etc.

The bottom line is that, while no concrete regulations or requirements are yet in place, school personnel can anticipate guidance on these topics in the coming months.  Administrators should watch closely for developments – because they will be coming.  In the meantime, personnel should review their procedures on these issues and consider how, if at all, the procedures may be impacted by the coming changes.  By preparing now, schools will be ready to tackle the new rules when they do come.